BY ACCEPTING THESE STICKY TERMS OF USE (“TERMS OF USE”) OR USING THE PLATFORM SERVICES OR SIGNING AN ORDER FORM THAT INCORPORATES THESE TERMS OF USE, CLIENT ACKNOWLEDGES AND AGREES, ON BEHALF OF HIMSELF OR HERSELF, AS APPLICABLE, OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF CLIENT’S ENTITY THAT CLIENT HAS READ AND AGREES TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE WITH THE LEGAL ENTITY PROVIDING THE SERVICE; AS NOTED THE ORDER FORM, ON BEHALF OF ITSELF AND ITS AFFILIATED COMPANIES (“STICKY"). IF CLIENT DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE, CLICK THE "I DO NOT AGREE" BUTTON AND DO NOT USE THE PLATFORM SERVICES. THE DATE THAT CLIENT AGREES TO THESE TERMS OF USE, WHETHER ONLINE OR VIA AN ORDER FORM, IS THE "EFFECTIVE DATE." CLIENT REPRESENTS, ACKNOWLEDGES AND AGREES THAT CLIENT IS AT LEAST 18 YEARS OF AGE OR THE AGE OF MAJORITY IN CLIENT’S JURISDICTION.
1. Definitions; License Grant & Restrictions
1.1 Definitions
As used in these Terms of Use and in any Order Form(s) associated herewith:
“Client Customers” means, if Client is a marketing agency or similar service, the companies for whom Client uses the Platform Service(s); "Client Data" means any images, data, information or material that Client or Client’s Users, submit to Sticky or the Platform Service(s) in the course of using the Platform Service(s);
"Content" means the information, documents, reports, software, products and services contained in or made available via the Platform Service(s), other than Client Data;
“Crowd” means the group of individual data subjects with whom Sticky has a relationship and that that agree to participate in the applicable Experiment(s);
“Credits” means prepaid credit amounts that are available to apply to use of the Platform Services to upload Client Data and conduct Experiments for the selected Crowds;
“Experiment(s)” means surveys that Client may conduct through the Platform Service(s) and that display the Client Data; "Initial Term" means the initial subscription period commencing on the Order Effective Date as specified in the applicable Order Form;
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"Order Effective Date" means the date identified in an Order Form as the date on which such Order Form shall be effective;
"Order Form(s)" means the signed order form or online ordering document agreed to by Client evidencing the initial subscription order for the Platform Service(s) and any subsequent Order Form(s), specifying, among other things, the Order Effective Date, the initial subscription period and Credits as agreed to between the parties, each such Order Form to be incorporated into and to become a part of these Terms of Use (if there is any conflict between the terms of these Terms of Use and the terms of any such Order Form, the terms of these Terms of Use shall prevail);
"Platform Service(s)" means Sticky's hosted visual engagement and data analytics platform known as “Sticky,” as described by Sticky on https://www.tobiipro.com/product-listing/sticky-by-tobii-pro developed, operated, and maintained by Sticky or its third party hosting provider and accessible via a designated web;
"Renewal Term" means each subsequent period equal in length to the Initial Term;
"Sticky Technology" means all of Sticky's proprietary technology used by Sticky to provide the Platform Service(s);
"User(s)" means Client’s employees, representatives, consultants, contractors or agents who are authorized to use the Platform Service(s) and have been supplied user identifications and passwords by Client (or by Sticky at Client’s request).
1.2 License. Subject to the terms and conditions of these Terms of Use, including, without limitation, payment of all applicable fees for based on the metrics set forth on an Order Form, Sticky hereby grants Client a non-exclusive, non-transferable, non-assignable worldwide right to access and use the Platform Service(s) provided hereunder solely to conduct Experiment(s) for Client’s own internal business purposes. All rights not expressly granted to Client are reserved by Sticky and its licensors. Sticky reserves the right to make changes, modifications and enhancements to the Platform Service(s) from time to time.
1.3 Client Customers. Notwithstanding the terms of Sections 1.2 or 2 below, if Client is a marketing advertising agency or other service provider, then Client may download, copy, license, sell and distribute tangible copies of reports that include data generated through Client’s use of the Platform Service(s) to Client Customers, on the condition that Client disclaims all warranties and liabilities on behalf of Sticky or Client’s licensors.
2. Limitations on Use
Except as otherwise expressly permitted hereunder, Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform Service(s) or the Content in any way; (ii) modify or make derivative works based upon the Platform Service(s) or the Content; (iii) create Internet "links" to the Platform Service(s) or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Platform Service(s) in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Platform Service(s), or (c) copy any ideas, features, functions or graphics of the Platform Service(s). Additionally, Client shall not use the Platform Service(s) to: (i) upload or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights or Intellectual Property Rights; (ii) upload or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Platform Service(s) or the data contained therein; or (iv) attempt to gain unauthorized access to the Platform Service(s) or its related systems or networks or to any Client Data belonging to another customer or to experiments that are not displayed in, or intended for, Client’s account. Client acknowledges and agrees that any reports generated through the Platform Service(s) will only include data of the Crowd that does not personally identify any individual. Client may not use the Platform Service(s) to request from a Crowd, or otherwise process, any information (whether identifiable or not) regarding racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning sexual life or sexual orientation.
3. Order Process
Each Order Form shall become incorporated herein by reference. If Client’s business practices require that a purchase order number be issued prior to payment of any Sticky invoices issued, then such purchase order number must be recorded within the Order Form.
Client’s execution and return of an Order Form to Sticky without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Client may use in connection with the provision of Platform Service(s) by Sticky are hereby rejected and will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Sticky to object to such terms, provisions or conditions.
4. Client Data
Sticky does not own any Client Data. Client, not Sticky, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Client Data. Sticky reserves the right to monitor Client Data but is under no obligation to do so. Sticky shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data. Client hereby grants Sticky a perpetual, non-exclusive, royalty-free license to use the Client Data: (a) as necessary to provide the Platform Service(s) to Client under these Terms of Use;(b) for statistical, analytical and other non-personally identifiable use alone and/or together with other data; and (c) as necessary to monitor and improve the Platform Service(s). Without limiting the foregoing, Sticky may provide statistical information related to the usage of the Platform Service(s), such as usage or traffic patterns or results obtained through the Platform Service(s), to third parties, but such information will not include identifiable information of Client or personally identifying information of Client’s Users or Client Customers. Client is responsible for properly uploading the Client Data to the Platform Service(s) or otherwise providing Sticky with access to the Client Data to enable Sticky to provide the Platform Service(s).
5. Intellectual Property Ownership
Sticky alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Sticky Technology, the Content and the Platform Service(s) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Platform Service(s). These Terms of Use do not convey to Client any rights of ownership in or related to the Platform Service(s), the Sticky Technology or the Intellectual Property Rights owned by Sticky. The Sticky name, the Sticky logo, and the product names associated with the Platform Service(s) are trademarks of Sticky or third parties, and no right or license is granted to use them.
6. Client’s Responsibilities and Mutual Indemnities
6.1 Client Responsibilities. Client is responsible for all activity occurring under Client’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Client’s use of the Platform Service(s) and the Client Data, including those related to data privacy, international communications and the transmission of technical or personal data.
Client shall: (i) notify Sticky immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Platform Service(s); (ii) report to Sticky immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Client or Client’s Users; and (iii) not impersonate another Sticky user or provide false identity information to gain access to or use the Platform Service(s).Client agrees that Client will comply with all applicable laws and regulations in connection with Client’s use of the Platform Service(s), including but not limited to, all applicable privacy and export control laws and regulations.
6.2 Client Indemnity. Client shall indemnify and hold Sticky, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) to the extent arising out of or in connection with: (i) a claim alleging that use of the Client Data infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party; (ii) a claim, which if true, would constitute a violation by Client of Client’s obligations, representations and warranties under these Terms of Use; (iii) a claim arising from the breach by Client or Client’s Users of these Terms of Use; or (iv) any claim arising out of Client’s license, sale and/or distribution of tangible copies of reports generated through Client’s use of the Platform Service(s) to third parties, provided in any such case that Sticky (a) promptly gives notice of the claim to Client; (b) gives Client sole control of the defense and settlement of the claim (provided that Client may not settle such claim unless such settlement unconditionally releases Sticky of all liability and does not adversely affect Sticky's business or Platform Service(s)); (c) provides to Client all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim.
6.3 Sticky Indemnity. Sticky shall indemnify and hold Client, its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) to the extent arising out of or in connection with a third party claim alleging that the Sticky Technology infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party, provided in any such case that Client (a) promptly gives notice of the claim to Sticky; (b) gives Sticky sole control of the defense and settlement of the claim (provided that Sticky may not settle such claim unless such settlement unconditionally releases Client of all liability and does not adversely affect Client's business); (c) provides to Sticky all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim. If the Sticky Technology becomes, or in Sticky’s opinion is likely to become, the subject of an infringement claim, Sticky may, at its option and expense, either (a) procure for Client the right to continue using the Sticky Technology, (b) replace or modify the Sticky Technology so that it becomes non-infringing, or (c) accept termination of the licenses granted hereunder and give Client a refund for the fees paid by Client less a reasonable allowance for the period of time Client has used the Sticky Technology. Notwithstanding the foregoing, Sticky will have no obligation under this Section 6.3 or otherwise with respect to any infringement claim based upon (i) any use of the Sticky Technology not in accordance with these Terms of Use or for purposes not intended by Sticky, (ii) the Client Data or any use of the Sticky Technology in combination with other products, equipment, software, or data not supplied by Sticky, (iii) any use of any release of the Sticky Technology other than the most current release made available to Client, or (iv) any modification of the Sticky Technology by any person other than Sticky or its authorized agents or subcontractors.
THIS SECTION 6.3 STATES STICKY’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
7. Charges and Payment of Fees
7.1 Charges and Credits. Client will pay Sticky all fees and charges as set forth in the Order Form. Client may cancel orders for Platform Service(s) effective at the end of the current Initial Term or Renewal Term as set forth in Section 12.1. Client will not receive any refunds for fees paid except as set forth in Section 6.3. Purchased Credits for Experiments must be used and redeemed during the Initial Term or they will rollover to be used during the first thirty (30) days of the subsequent Renewal Term. If Credits are not used during the Initial Term or within the first thirty (30) days of the subsequent Renewal Term, Client will be deemed to waive rights to use and redeem such Credits. Credits will be redeemed in the order in which they were purchased (i.e. on a first in, first out basis where the first Credits purchased will be the first Credits redeemed).
7.2 Changes and Taxes. Sticky reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Client, effective upon the next Renewal Term in accordance with Section 12, below. If Client does not cancel as described in 9 below, such changes shall become effective at the commencement of the Renewal Term. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Client is responsible for paying all Taxes associated with its purchases hereunder. If Sticky is required to collect any Taxes from Client, such Taxes will be added to the charges on Client’s credit card or added to Client’s invoice, as applicable.
7.3 Payments and Billing Information. Unless otherwise stated on the Order Form, any fees shall be payable against invoice from Sticky (30 days net). If Client have agreed to pay by credit card, Client authorizes Sticky to charge Client’s credit card for all Platform Service(s) set forth in the Order Form. Client consents to receiving electronic communications from Sticky. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Platform Service(s). Client agrees to provide Sticky with accurate billing and contact information, including Client’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Client agrees to update this information within thirty (30) days of any change to it. If the contact information Client has provided is false or fraudulent, Sticky reserves the right to terminate Client’s access to the Platform Service(s) in addition to any other legal remedies.
8. Confidentiality
8.1 Confidential Information. “Confidential Information” means any non public information that relates to the actual or anticipated business, research, or development of Client or Sticky and any proprietary information, trade secrets, and know how of Client or Sticky that are disclosed to either party or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items.
Confidential Information includes information that is defined as “Confidential Information” under any Order Form between the parties. Confidential Information also includes the confidential information of third parties that has been provided to Client or Sticky. Each party’s Confidential Information is the sole property of that party.
8.2 Exceptions. Confidential Information does not include any information that either party can demonstrate: (a) was publicly known and made generally available in the public domain before the other party disclosed the information, (b) became publicly known and made generally available, after disclosure by either party, through no wrongful action or inaction of either party or others who were under confidentiality obligations, (c) was in either party’s possession, without confidentiality restrictions, at the time of disclosure by either party, as shown by that party’s files and records, or (d) was independently developed without use of or reference to the Confidential Information.
8.3 Nondisclosure and Nonuse. Each party will not, during and after the term of these Terms of Use disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than the performance of its obligations hereunder. Each party will take all reasonable precautions to prevent any unauthorized disclosure of the Confidential Information including, but not limited to, requiring each employee and independent contractor with access to Confidential Information to execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in these Terms of Use.
9. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into these Terms of Use. Sticky further represents and warrants that Sticky will perform the Platform Service(s) in a professional manner and substantially in accordance with the online Sticky help documentation under normal use and circumstance. In the event of a breach of this warranty, Client’s sole remedy and Sticky’s sole obligation will be for Sticky to make reasonable commercial efforts to correct the non-conformity or, if Sticky is unable to correct the non-conformity, Sticky may allow Client to terminate the applicable Order Form. Client represents and warrants that Client has the rights to upload and use the Client Data, that the Client Data does not infringe the Intellectual Property Rights of any third party and Client has not falsely identified itself nor provided any false information to gain access to the Platform Service(s) and that Client’s billing information is correct.
10. Disclaimer of Warranties
EXCEPT AS PROVIDED IN SECTION 9, STICKY AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM SERVICE(S) OR ANY CONTENT. STICKY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE PLATFORM SERVICE(S) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE PLATFORM SERVICE(S) WILL MEET REQUIREMENTS OR EXPECTATIONS, OR (C) THE PLATFORM SERVICE(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY STICKY AND ITS LICENSORS.CLIENT IS RESPONSIBLE FOR BACKING UP ITS OWN CLIENT DATA. STICKY'S PLATFORM SERVICE(S) MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. STICKY IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. Limitation of Liability
EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THESE TERMS OF USE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PLATFORM SERVICE(S), OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE PLATFORM SERVICE(S), ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL STICKY’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THESE TERMS OF USE EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
12. Term, Renewal and Termination
12.1 Term and Renewal. Unless stated otherwise on the Order Form, the Initial Term of these Terms of Use shall begin on the Order Effective Date and continue for the Initial Term as set forth in each Order Form.
12.2 Termination for Cause. Either party may terminate these Terms of Use (and any Order Form(s) then in effect) if the other party breaches any material term of these Terms of Use which, in the case of Client, will include any breach of Client’s payment obligations or unauthorized use by Client of the Sticky Technology or Platform Service(s), if the other party fails to cure such breach within ten (10) business days after notice of such breach.
12.3 Survival. Termination or expiration of these Terms of Use shall not relieve either party of obligations that by their nature or term survive termination or expiration; such as, by way of example and without limitation, the obligation to make all payments that have or will become due under these Terms of Use, Sections 1.1 (Definitions), 2 (Limitations on Use), 4 (Client Data), 5 (Intellectual Property Ownership), 6 (Client’s Responsibilities and Mutual Indemnities), 8 (Confidentiality), 9 (Representations & Warranties), 10 (Disclaimer of Warranties), 11 (Limitation of Liability), 12.3 (Survival), 12.4 (Effect of Termination),(Intellectual Property Ownership), 9.3 (Survival), 9.4 (Effect of Termination), 15 (Dispute Resolution and Binding Arbitration Provision) and 16 (General).
12.4 Effect of Termination. Upon termination or expiration of these Terms of Use: upon request, each of the parties shall deliver or destroy all Confidential Information of the other party which is in its possession, care or control and Client will no longer have access to the Platform Service(s). Client agrees and acknowledges that Sticky is not obligated to retain Client Data for longer than thirty (30) days after termination and if Client requests Client Data within such thirty (30) day period, subject to Client’s payment of the applicable fees, Sticky will provide Client with the Client Data. Thereafter, Sticky has no obligation to retain Client Data, and may delete Client Data from the Sticky Platform Service(s) provided however that Sticky may keep the Client Data after the termination of these Terms of Use as part of Sticky’s general practices, for example by storing the Client Data to enable the Client to access its account at a future date.
In addition to any other rights granted to Sticky herein, Sticky reserves the right to suspend these Terms of Use and Client’s access to the Platform Service(s) if: (i) Sticky determines in its sole discretion that Client is in violation of the terms of Section 4 or (ii) Client’s account becomes delinquent and is uncured for a period of thirty (30) days. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses involved in the debt’s collection. Client will continue to be charged for fees during any period of Platform Service(s) suspension. If Sticky initiates termination of these Terms of Use for cause, as further described in Section 12, Client will be obligated to pay the balance due on any Order Form(s) (s) then in effect computed in accordance with Section 12 above, provided, however, that any such Order Form shall expire at the end of the Initial Term or then-current Renewal Term. Client grants Sticky the right to use Client’s name, mark and logo on Sticky’s website, in Sticky marketing materials, and to identify Client as a Sticky Client.
13. Dispute Resolution and Binding Arbitration Provision
Any controversy or claim arising out of or relating to this contract shall be determined by arbitration in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution. The number of arbitrators shall be one. The place of arbitration shall be Washington, DC. These Terms of Use shall be governed by the laws of Virginia, USA without regard to conflict of laws principles. The language of the arbitration shall be English.
Tobii Technology, Inc is listed on the Order Form: ATT: LEGAL 12007 Sunrise Valley Drive, Suite 400, Reston, VA 20191, USA
Tobii Pro AB is listed on the Order Form: ATT: LEGAL Tobii AB Box 743 182 17 Danderyd, SWEDEN
All notices permitted or required under these Terms of Use shall be in writing and shall be delivered by personal delivery, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms of Use. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of these Terms of Use shall not be affected thereby. The failure of either party to enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms of Use may not be assigned, sub-licensed or otherwise transferred by Client without the other party's prior written consent except that either party may assign these Terms of Use without the other party's consent to any entity that acquires all or substantially all of such party’s business or assets, whether by merger, sale of assets, or otherwise, provided that such entity assumes and agrees in writing to be bound by all of such party’s obligations under these Terms of Use. Additionally, Sticky may assign these Terms of Use to any affiliated entity within its corporate family. In the event any judicial proceeding, lawsuit or claim is brought by one party against the other party in connection with these Terms of Use, the prevailing party shall be entitled to recover its reasonable fees and costs, including but not limited to attorneys’ fees, expert witness fees, consultant fees, and related costs and expenses. These Terms of Use, together with the Order Form, constitutes the parties’ entire understanding regarding the Platform Service(s) and supersedes any and all other prior or contemporaneous agreements, whether written or oral. If Client has any questions about these Terms of Use, please contact Sticky at: support.sticky@tobii.com.
Effective: January 1, 2020